Negotiation and Mediation: Is that a Law Student's Cup of Tea?

by Sandeep Bhalothia
April 2017 Sandeep Bhalothia

Ever wondered why mooting or debating is a very essential part of a law student’s life? Ever wondered what kind of skills a law student can develop by participating in a moot or a debate? You might be thinking that how irrelevant I am because, generally, even a first semester law student is aware of the importance such competitions have – they give you the necessary arms and ammunition which help you win the brutal fights in court.

But ever wondered why negotiation and mediation should also be part of an early law school diet; how developing necessary skills in effective communication can help law students to stay ahead once they graduate? Probably not, but that is not your fault. The majority of the law schools in India focus on moot courts and debates. They consider training law students in mooting and debating as their primary responsibility and think that stuff like communication, negotiation, and mediation are not vital or that they can be self-learnt and, therefore, fail to provide enough resources, experienced professors/mentors, training, and motivation. And even many law students think of negotiation and mediation as a low-tier competitions or opportunities and tend to pay less attention to them and skills that involve such competitions. Even though negotiation and mediation do not require a detailed knowledge about any law subject unlike moot but it is only during or after the third year do law students start showing any interest in these domains.

This piece reflects my personal journey through which I’ve bagged a ton of soft skills from self-preparation, mentoring, and my participation in various competitions like 6th CityU International ADR Moot Competition and Lex Infinitum (by V M Salgaocar College of Law, Goa). I am going to reflect on the importance of negotiation and mediation in the life of law students from my humble experience, knowledge, and guidance, provided by my seniors, professors, friends, and mentors. Negotiation and mediation are very organic to me and in the recent past there has been increase in the popularity of negotiation and mediation like the UNCITRAL Working group discussion on coming up with an international treaty like the New York Convention for the enforcement of mediated settlement agreements, and the discussions on use of mediation in resolving international investment disputes (one also needs to keep in mind the increasing popularity of negotiation and mediation competitions in India and globally).

Training, reading, and engaging in negotiation and mediation helps a law student to accumulate a totally different kind of skills which is not possible from participating in any other kind of extracurricular activities like moots, debates, research and client counselling. Negotiation and mediation helps to develop skills like effective listening, communication, and bargaining, finding commercially viable solutions, teamwork, etc. Engaging in this domain is also one of the best way to become a more commercially sound student who understands the business aspects. Disputes in negotiation and mediation are not resolved on the basis of legal arguments but on the commercial understandings (or other motivations depending on the kind of conflict) where all parties collaboratively work with each other (and with the mediator) to find a commercially viable solution to their differences. In doing so, everyone keeps their bare Acts and case laws aside and only focus on finding mutually agreeable options which satisfy the underlying interests and needs.

Participating in negotiation and mediation also helps in improving your personality at a very early stage as an assertive, confident, and developed lawyer. It inspires law students to focus on commercial motivation, human psychology, verbal and body language, and communication. These skills aren’t just something which are meant for a negotiation or mediation event, rather these skills have the potential of leaving a good and long lasting first impression on the people we meet. So, skills learned by engaging in this domain are not only restricted to the world of dispute resolution but they could also be used in your personal life in understanding and resolving the issues of communication failures and differences arose with friends or family members.  Mediation or Conciliation are now widely recognized methods to resolve matrimonial disputes and if these mechanisms can help to resolve such serious disputes then there is no doubt that the same tools and skills could be used to resolve differences in personal and professional relationships.

In negotiation and mediation, there is no hierarchy of power or authority between the mediator and the parties. All the parties sit on the same table; the sitting arrangement is such that it does not show any superiority of one over the other. And through the principled process, all the stakeholders collaboratively achieve a common goal with a good understanding of interests and cultural differences involved (if any). How does impact a student’s outlook and personality? Participating in negotiation/mediation workshops and competitions during the early days of law school also helps to improve that budding leader in you. Leadership needs unique qualities some of which are gifted and others can be practiced, trained, and learnt by making a sincere effort. A good leader should also be able to take a collaborative approach in dealing with differences; be able to work with his/her team without reflecting his/her superiority; must be able to treat everyone equally. A good negotiator or mediator automatically develops these qualities as they also form an integral part of their skills and the process of negotiation and mediation.

Learning the skills of negotiation and mediation also opens a plethora of other opportunities. It helps you to present your side of story in the most effective and convincing way with the help of communication and persuasive skills grasped from workshops and competitions. The increasing rate of success and popularity of use of mediation to settle wide range of disputes like real estate, matrimonial, commercial, and international investment. Extensive use of multi-tiered dispute resolution clauses has also increased the requirement of lawyers in law firms, corporate houses, arbitration and mediation centers etc. who are experienced and trained in negotiation and mediation.

Consensual dispute resolution mechanisms like negotiation and mediation are continuously gaining popularity and are now widely used to resolve different forms of disputes and ignoring them will bring no benefit to law students. It is advisable to start engaging with these mechanisms from the very early stage of law school so there is enough time to learn from your mistakes; try your hand in different types and forms of negotiation and mediation, and graduate as lawyers who, in addition to the substantive and procedural knowledge of law subjects, is also able to understand human behavior, emotions, and interests of their clients. Law students who are yet to start exploring these domains can begin with:

  1. Reading books like Getting to Yes, Getting Past to No, How to Negotiate Like a Pro, How to Mediate Like A Pro and Never Split the Difference.
  2. Following Com, Kluwer Mediation Blog and Harvard PON Blog.
  3. Enrolling in distance learning courses like Successful Negotiation, Introduction of Negotiation, The Art of Negotiation and few other courses offered by IIAM and;
  4. Interning with CAMP, Delhi Mediation Centre, Bangalore Mediation Centre

 

The author wants to give credit to Mr. Gracious Timothy for encouragement and help that he provided in writing this article.

Biography


Sandeep Bhalothia is a Penultimate Year Law Student at Jindal Global Law School. He is a Young Arbitration Member at ICCA (The Hague, Netherlands), and a Fellow at World Mediation Organization (Berlin, Germany).



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